Who Pays if You Get Smacked by a Foul Ball?

A piece of common law known colloquially as the Baseball Rule has been doing the dirty work for MLB teams for more than a century, stating (in terms not nearly as simple as these) that if you go to a game, you take your chances. The risk of injury at a ballpark is not shouldered by the teams or the batter or the commissioner or the bat manufacturers. It's all on you, the fan.

Baseball teams almost never have had to pay for injuries their fans suffer from batted balls as long as:

That's the Baseball Rule.

Still, there have been horrific injuries in the headlines — maybe the ugliest was a 1-year-old girl who was hit in the face by a ball traveling better than 100 mph (160 kph) in October 2017 in Yankee Stadium. Now with an almost universal call for better safety measures (even from nervous teams themselves) and some major upheaval in how the game is played, MLB is making the changes.

The move is hardly altruistic. Baseball is clearly trying to protect its own interests, preparing for a day when the Baseball Rule may not be there to shield it from lawsuits.

"When you start to see young kids getting hurt, where it's harder to argue they assume the risk of liability," says Nathaniel Grow, a professor of business law and ethics at the University of Indiana Kelley School of Business, "that theoretically could be the type of case that a court would start to push back on [the Baseball Rule] a little."

Grow, who has a law degree from the University of Michigan, and University of Georgia student Zachary Flagel have studied the history of the liability issue in baseball and delved into the recent spate of fan injuries in an article titled "The Faulty Law and Economics of the 'Baseball Rule'," which will be published in an upcoming issue of the William and Mary Law Review. In it, they argue that the Baseball Rule is antiquated — it was established in 1913 — and no longer applicable for today's game.

Grow points out that fans now sit some 20 percent closer to the action — and those dangerous foul balls — than they did only 25 years ago, the result of 21 new, more-intimate stadiums having been built in the last quarter-century. In addition, pitchers are throwing harder (leading to foul balls coming off bats more quickly), and hitters are bigger and stronger (thanks to advanced training techniques).

Add to that this undeniably dangerous 21st-century fact of life: Many spectators are distracted from the game by any number of bells and whistles — smartphones, vendors, video scoreboards, annoying mascots — making fans even more vulnerable to a sizzling foul ball.

According to Bloomberg, some 1,750 fans are injured by foul balls in major league stadiums every year. Only one fan death ever has been attributed to being hit by a foul ball — in 1970 — but the recent injuries are sending a chill into everyone involved with the game.

All that makes the Baseball Rule more vulnerable to reinterpretation by the courts than ever. Baseball is paying attention and taking action.

"Providing baseball fans with a variety of seating options when they come to the ballpark, including seats behind protective netting, is important," MLB Commissioner Rob Manfred said in a statement before the season began. "Major League Clubs are constantly evaluating the coverage and design of their ballpark netting and I am pleased that they are providing fans an increased inventory of protected seats."

Ironically, MLB's move to better protect its fans from being hurt — and itself from possible litigation — could well lead to the downfall of the very law that has kept angry fans and lawyers at bay.

"If Major League Baseball is saying we need more netting, that should strongly suggest to the courts that [the Baseball Rule] probably needs to be looked at again," Grow says. "If even the business is saying what's legally required isn't enough ..."

As good as the Baseball Rule has been to MLB, striking it down would not be awful for the game, Grow contends. It's a notion taken from the law and economics movement, which says that "law is best viewed as a social tool that promotes economic efficiency."

Grow explains the idea: "Who can avoid this injury the easiest or the best? Let's [make] that person responsible. Then we're getting the maximum protection at the lowest cost.

"Here, that argument is the team can spend $10,000 to $12,000 to put in an extra net that's going to avoid a $150,000 injury. Society on a whole, financially speaking, is better off if the team does that."

It seems a small price to pay for a little protection. For everybody.